Provincial Court

PROVINCIAL COURT OF NOVA SCOTIA

Citation: Halifax (Regional Municipality) v Wells, 2024 NSPC 38

Date: 20240627

Docket:  8543372

Registry: Halifax

Between:   

Halifax Regional Municipality

v

Janice Marie Wells

By the Court:

Synopsis

[1]             The Court is dealing with an application for particulars and an application to quash a charge.

[2]             Janice Marie Wells is charged in a summary-offence ticket [SOT] (SOT 7455940, case 8543372) alleging an offence under the Health Protection Act, SNS 2004, c 4 [HPA].  The SOT refers to ¶ 71(1)(b) of the HPA, which is the penalty provision of the statute, rather than an offence-description provision.  The SOT provides the following description of the alleged offence:

On or about the 27^th day of November 2021, at or near 747 Bell Blvd Goff NS did unlawfully commit the offence of: person [sic] failing to comply with Part I of act or regulations or with order made under part of act (Refusing to complete form made under Health Protection Act).

[3] The endorsements on the SOT record the following pertinent transactions:

[4]             The Court received an email from the prosecutor dated 19 June 2024 informing the Court that the prosecutor would oppose Ms Wells’ demand for particulars, and that the prosecutor had sent particulars to Ms Wells by email on 3 June 2024.

Charge-wording sufficiency

[5]              A charge must be worded in a way that allows an accused person to know what the state alleges was done that was wrong.  Charge-drafting standards are not exacting; they are set out in § 581(3) of the Criminal Code (provisions of the Code which apply to summary-conviction matters are brought into this proceeding in virtue of § 7 of the Summary Proceedings Act, RSNS 1989, c 450).  Even a charge that is encumbered by some level of insufficiency may nevertheless be found legally acceptable, provided the wording give the accused person fair notice of the case to be met: R v Webster, 1993 CanLII 9437, [1993] 1 SCR 3 at 8-9.

Particulars and their purpose

[6]             An accused person who is confronted with a charge that exhibits a level of insufficiency or uncertainty may seek a number of remedies.  One of them is an application for an order for particulars under § 587 of the Code.  An application for particulars is heard as a pre-trial application, in virtue of ¶ 2.4(2)(c) of the Nova Scotia Provincial Court Rules: online at https://qweri.lexum.com/w/nsc/pcr-en#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA.

[7]             The function of particulars in a trial is twofold:  first, to give exact and reasonable information to an accused person respecting the charge as will enable the establishing of a defence; second, to facilitate the administration of justice (eg, allowing the trial judge to assess the relevancy of evidence): R v Canadian General Electric Co Ltd, Westinghouse Canada Ltd and GTE Sylvania Canada Ltd (No. 1), 1974 CanLII 1540, 17 CCC 2d  433 at 447 (ONSC).

The need for particulars in this case

[8]             In Ms Wells’ case, the need for particulars is quite evident.  The first clause of the charge, as worded in the ticket, is manifestly vague: failing to comply with Part I of the HPA, or the regulations, or an order made under the HPA. 

[9]             Part I of the HPA runs from § 4 to § 74 of the statute; it is possible to comprehend scores of ways one might fail to comply with those provisions: a medical officer might fail to perform an obligatory duty; a medical-records custodian might fail to disclose a record sought by a medical officer; a designated person might fail to report a health hazard; an occupier of premises might fail to comply with a medical-officer’s order.   I stopped counting at twenty ways one could be in violation of Part I of the HPA.

[10]         What about failing to comply with regulations under the HPA?  As of the date Ms Wells was charged, there were 12 regulations made under the authority of the HPA, each of which might be violated in any number of ways.

[11]         I have not gone through the Royal Gazette to count the number of HPA orders there were in operation at the time Ms Wells was charged.

[12]         Accordingly, it would be an understatement to describe the first clause of the charge as imprecise.  A similarly imprecise SOT— in R v Haley, 1981 CanLII 3230, 65 CCC 2d 93 at 100 (NSCA)—was found to be objectionable as being multifarious, but could be fixed with an amendment.

Particulars provided

[13]         Fortunately, the officer who issued the ticket to Ms Wells wrote on the SOT an additional detail: “refusing to complete form under the Health Protection Act.”  That supplementary specificity narrows down considerably the scope of the alleged offending conduct.

[14]         The prosecution has provided Ms Wells with added granularity; in the email which the prosecutor  sent to Ms Wells on 3 June 2024 and copied to the Court on 19 June 2024, the prosecutor stated:

 Notwithstanding that you have not relied upon any legal basis to support your "Demand For Particulars", and without conceding any merit to your expressed position, the Crown is prepared to supply the following details with respect to the charge outstanding. The particulars of the offence alleged are that you did:

unlawfully fail to complete a Nova Scotia Safe Check-in form, contrary to ss. 2.2 of the Restated Order #3 of the Chief Medical Officer of Health made pursuant to Section 32 of the Health Protection Act.

[15]         I am satisfied that this particularization of the charge provides Ms Wells with sufficient detail to allow her to establish her defence, and to allow the Court to identify relevant issues.  Indeed, it is apparent from the very first paragraph of Ms Wells’ particulars document that she is well fixed with the knowledge of the precise theory of the case for the prosecution:

Janice Wells was issued a travel mandate ticket [sic] at Halifax Airport by HRPD police on Nov 27, 2021 for allegedly refusing to Fill out the Tracking Travelers to Nova Scotia form [sic]. . . .

Ms Wells’ Demand for Particulars document

[16]         Ms Wells’ demand for particulars is looking for very much more than what the prosecutor has given her.  For the purposes of clarity, Ms Wells’ demand document is attached to this decision as Schedule A. 

[17]         In my view, what Ms Wells seeks is more in the nature of legislative and social facts, as that term was defined in Danson v Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 SCR 1086 at 1099: legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context.  This falls well outside the scope of what would constitute particulars.  Furthermore, legislative facts do not appear to be relevant to this case, as no constitutional question is before the Court.  Even if a constitutional issue were to arise, that development would not enlarge the obligation of the prosecution to provide disclosure or additional particulars, as constitutional challenges regarding the validity of statutes or regulations are subject to a defence burden of proof; this is because statutes and regulations are presumed to be valid: Katz Group Canada Inc v Ontario (Health and Long‑Term Care), 2013 SCC 64 at ¶ 25; Reference re Impact Assessment Act, 2023 SCC 23 at ¶ 69-75.

[18]         An application for particulars is not an alternative procedure for obtaining disclosure or production of evidence; it does not require the prosecution to provide details about matters not germane to the trial of a case.  Given the wording of some of Ms Wells’ demands, it is important for the Court to observe as well that an application for particulars does not require the prosecution to offer legal advice.  If Ms Wells wishes to obtain legal advice, she is fully at liberty to consult counsel of her choice.

[19]         Of the very many issues raised in Ms Wells demand document, only two will be germane at her trial:

•                    Was she required by law to complete a safe check-in form?

•                    Did she intentionally fail to complete one?

[20]         In grappling with these issues at trial, the Court will assiduously observe the presumption of Ms Wells’ innocence, the proof-beyond-a-reasonable-doubt standard borne by the prosecution, and the need to consider all statutory and common-law defences available to Ms Wells based on the evidence.

[21]         I find that the prosecution has already provided sufficient particulars to Ms Wells.  Accordingly, the application for particulars is dismissed. 

[22]         Although the prosecution provided this particular to Ms Wells without the Court having to order it, I believe that the Court ought still direct (1) that the particular be entered on the record (which is carried into effect by the publishing of this decision), and (2) that the trial proceed in all respects as if the SOT had been amended to conform with the particular.  This complies with § 587(3) of the Code, which sets out the procedural effect of particulars once they have been provided; it seems to me immaterial whether the particulars were provided by court order, or, as in this case, provided voluntarily by the prosecution.

Application to quash the SOT

[23]         Ms Wells observes accurately that the prosecution did not meet the 30 May 2024 deadline set by PJP for the filing of a response to the application for particulars.  The remedy Ms Wells seeks is to have the SOT quashed.

While filing deadlines must be treated seriously by all parties—as  filing requirements are orders of the court, not merely  requests or invitations—Ms Wells has not suffered a prejudice.  In fact, she has been provided with ample particulars by the prosecutor without the Court having had to order it.  A charge should be quashed or stayed only in the clearest of cases.  This is not one of them.  The application to quash is dismissed.

Atwood, JPC

APPENDIX A